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CARE LEGACIES - (Supreme Court | 2 Ob 132/24m | 10.09.2024 )

Writer's picture: Law Offices Dr. F. SchwankLaw Offices Dr. F. Schwank

Updated: Jan 30


Reference for a preliminary ruling on Art 4 of the “EU Succession Regulation”


The claimant is the domestic partner of the deceased, who lives in Austria. He provided care services to her in the last three years before her death. The estate was handed over to the heirs residing in Germany. The claimant is now seeking payment for the care legacy.

 

According to the EU Succession Regulation, the courts of the Member State in whose territory the deceased had her habitual residence at the time of her death, have jurisdiction in matters of succession. In this case it was Austria.

 

According to Austrian law, a “care legacy is a statutory legacy that is due to a person close to the deceased who has cared for the deceased for at least six months in the last three years before her death to a not merely insignificant extent”. The bequest is not due in addition to the mandatory portion and other benefits only if the deceased has made this provision in her will.


The Supreme Court states in a previous decision (2 Ob 63/21k) that the care legacy is a (statutory) legacy that arises independently of a testamentary disposition by the testator. It is a legacy because the legislator has expressly classified it as such. It is part of the right to a mandatory portion, as it can only be withdrawn on the basis of a reason for disinheritance.

 

The care legacy leads to a restriction of the deceased's right to self-determination.

 

Therefore, the Supreme Court is obliged to refer the matter to the Court of Justice of the European Union and has referred the question of whether a “matter of succession” within the meaning of the EU Succession Regulation exists if a claim for a care legacy is asserted.

 

Pending the decision of the Court of Justice of the European Union, the proceedings shall be suspended.



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